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3.850 Frequently Asked Questions



Florida Post-Conviction Law

Frequently Asked Questions

1.  Under what circumstances does Brooke Elvington Law accept representation for Post-Conviction Motions?

In most circumstances, Ms. Elvington will not accept a case for the purpose of filing a post-conviction motion without first conducting a thorough review of the case.  Because defendants typically only have one opportunity to file a 3.850 motion, it is important that the entire case be evaluated to determine what, if any, issues that individual may have.  The decision to move forward with further representation is made at at the conclusion of the post-conviction review.

2.  My conviction is more than 2 years old, am I out of luck?

It depends.  There are some circumstances where a defendant may pursue post-conviction remedies beyond the 2-year time limit.  Those circumstances are limited, and a thorough case analysis may be necessary to determine whether there are any viable issues.

3.  Witnesses have changed their story since my conviction, what can I do?

Witness recantation can be a viable issue for post-conviction relief.  You must establish that a change in the witness' testimony would have likely altered the outcome of your trial.  You must also be prepared to obtain written affidavits from the witness, and that witness must testify during an evidentiary hearing.  You may not rely upon written affidavits during the final hearing, and as such that individual will be subject to questioning by the prosecuting attorney.  Sometimes clients are unaware that witnesses have recanted, and it can be beneficial to retain the services of a private investigator during the review period of the case to speak with key witnesses.  

4.  My attorney did not depose or interview key state witnesses or witnesses I presented to him/her, what can I do?

An attorney's failure to interview, depose and/or present testimony can be a viable claim for relief.  You must establish how the lawyer's failure to do so prejudiced your case.  To do so, you must be able to state the substance of the witness' testimony, and that witness will need to testify during a hearing, if a hearing is granted.

5.  My attorney failed to advise me regarding a possible motion to suppress or motion to dismiss.

An attorney's failure to investigate and/or file a proper motion to suppress or motion to dismiss may be a viable claim.  You must establish that the motion would have likely been granted.  Keep in mind that suppression motions are often strategically waived in cases where the state attorney's office offers a more favorable plea in exchange for abandoning the motion.  Of course, if this was done, the question may become whether the client was aware of such.  

6.  My attorney failed to impeach key witnesses during trial.

Failure to impeach can be a viable claim of relief.  A thorough analysis of the trial testimony along with prior statements is necessary to determine whether the attorney failed to impeach, and if so, whether that failure was prejudicial under the Strickland standard.  

7.  My attorney failed to object to my sentencing guidelines.

This issue can be raised on direct appeal in limited circumstances.  If it was not raised on appeal, it may be a viable claim for relief.  You must establish that the guidelines were in fact incorrect, and that the outcome would have likely been different had the correct guidelines been used.  Often, clients raise this issue without regard to the prejudice prong of the analysis - an analysis must be conducted to determine whether you can establish prejudice.

​8.  Is it sufficient to prove that my lawyer made a large number of mistakes?

No.  You must establish that the error prejudiced you.  This is the most difficult part of the defense burden, and while it may seem that any error would prejudice a defendant, this is not true.  A thorough and honest analysis is necessary to determine whether prejudice can likely be established.  

9.  I filed a motion without an attorney, can I still hire an attorney?

Yes.  So long as a final order has not been entered, private counsel may be hired and that attorney may submit an amended motion on your behalf.  If you are still within the 2-year time frame, private counsel may be able to add additional claims originally omitted.

10.  Am I entitled to a public defender for the purpose of filing my motion?

Unfortunately, no.  3.850 proceedings are classified as "civil" cases, and there is no constitutional right to representation for these proceedings.  However, if the trial court grants an evidentiary hearing, you may request the appointment of counsel at that time. Likewise, if the motion is denied after the evidentiary hearing, you may request the appointment of appellate counsel to handle the appeal.

 11.  Am I entitled to state funds to investigate my case, including hiring private investigators, or expert witnesses, such as DNA analysts?

Unfortunately, no.  For the same reason as stated above, you are not entitled to state funds.  

12.  I filed a pro se motion and the court is not entering a ruling, what can I do?

First, try and remain patient.  Courts receive hundreds of post-conviction motion on a regular basis.  It takes a great amount of time to go through the motions and enter rulings.  It is not uncommon for rulings to take 1 year or more.  However, if it appears that nothing is happening it may be necessary to contact the court to determine if the case is progressing.  Because there are judicial rotations and change in staff, it is not uncommon for assigned judicial staff to lose track of the motion's progress.  Typically a phone call from counsel resolves these type of issues; however, if that is not possible, and if you cannot obtain counsel, you may be required to take further action and file a writ of mandamus with the appellate court.  

13.  Can I negotiate with the State for a lesser sentence during 3.850 proceedings?

It depends.  Each prosecuting office has different policies on permitting negotiations; however, it is possible.  To determine whether this is a good strategic option, a thorough analysis is necessary.  

14.  The Trial Court denied my motion, what can I do?

You may appeal both a summary denial, (a denial without an evidentiary hearing), or a denial following an evidentiary hearing.  In both circumstances, the trial court must adhere to specific rules regarding denying the motion.  An experienced appellate attorney may be helpful in determining whether the trial court erred in denying the motion.

15.  What happens if I prevail after an evidentiary hearing?

The answer here depends on the issues raised in the motion.  The short answer is that the conviction is vacated and that the defendant is placed in the exact same position as he/she was prior to the conviction.  Unfortunately, a detailed answer here cannot be offered without knowing the facts of the case and the issues presented.